Stephentown Boards Have Differing Views As Motocross Jumps Another Hurdle

Code Enforcement Officer Herrick Accused Of Bias
by David Flint
The Stephentown Zoning Board voted in a split decision last week to reject an appeal of a determination by the Code Enforcement Officer regarding an access road to Howard Commander’s proposed Motocross project. The Board’s 3-2 vote in effect also disregarded an advisory opinion issued the day before by the Planning Board. [private]Following a public hearing on Thursday, March 1, the ZBA turned down the appeal from Lewis Oliver representing concerned neighbors and let stand Dean Herrick’s decision that only a use variance is needed to build the project in a residential area off of Webster Hill Road and that no separate area variance is required for an access road that runs within 25 feet of a neighbor’s property line.
The ZBA had requested the advisory opinion from the Planning Board in accordance with Stephentown’s Land Use Regulations regarding zoning appeals. That Board listened to the case presented by both sides on Wednesday, February 29. Chairman Tom Morelli and the two Board Members present, Derrick Gardner and Jim Ayling, then voted unanimously to advise the ZBA that an area variance would be needed for the access road and a parking area as well, insofar as they encroached into a 25-foot setback prescribed in the regulations. The regulations do provide an exception for “necessary driveways.” Oliver and the neighbors argued that the access road is not a driveway but a roadway for a commercial enterprise that would have 300 cars going in and out on each race day, far exceeding normal traffic on Webster Hill Road.
At the public hearing the next day, the Zoning Board listened to the same arguments from both sides. The neighbors said that people in a residential area have a right to the 25-foot setback protection. Howard Commander’s attorney Francis Roche argued that the access road was a pre-existing non-conforming use, but regardless of that, Herrick’s decision to view it as a necessary driveway, whether the Board agreed with it or not, could not be considered to be arbitrary, capricious, irrational or “off the wall.” The parking area was moot, he said, because Commander has agreed to preclude any parking of vehicles within 25 feet of the property line.
Oliver noted that with regard to grandfathered non-conforming uses, the regulations also state that such uses “shall not be changed to another non-conforming use without prior approval by the ZBA, and then only to a use which…is of the same or a more restricted nature.” The former tractor trail, he argued, had obviously been changed by Commander, toward becoming a commercial roadway carrying 300 cars in and out in one day.
Oliver also requested that Herrick be disqualified altogether from having anything to do with these proceedings. Herrick, he said, had shown bias in a letter he sent to Commander last October in which he stated that any residential use of the property designated for the proposed Motocross park “would not be feasible due to its proximity to the current race facility, the soil conditions and wet lands [and] most commercial uses would be impacted by the same conditions.” The Board ignored Oliver’s request, apparently viewing the letter not as indicating bias but merely a response to an inquiry about land use.
Herrick said that his determination was based on the NYS Building Code and Fire & Safety Code that requires any property in use to have a driveway to accommodate fire department apparatus and personnel. Most driveways are in fact located within 25 feet of a property line and only the Code Enforcement Officer has authority to regulate that. The Town Land Use Regulations, he pointed out, make this exception from the setback rule for necessary driveways, otherwise almost every residence would have to have an area variance for the driveway.
The Board began to discuss pre-existing and non-conforming uses, what limits there might be to the magnitude of changes to such uses and whether more legal clarification could be gained. But Board Member Joseph Champion, apparently feeling it was time to make a decision, moved to reject the appeal of Herrick’s determination. Richard Sime seconded the motion, and it passed 3-2 with Peter Ellard joining the vote to reject and Roland Barth and Freling Smith voting no.
The Board now moves on with the SEQR process related to the decision as to whether to grant a use variance to permit the project in a residential zone. Commander’s team has submitted a Draft Environmental Impact Statement responding to the declaration from the Board that there would be significant environmental impact from noise and the changing of the character of the neighborhood. The Board’s consultant engineer from Clough Harbour Associates, Mike Bianchino, suggested a few enhancements, including better delineation of parking areas and a section on the possibility of alternate locations for the Motocross track on the site as well as the possibility of moving the whole project to an alternate site. The Board voted unanimously to send out the DEIS, with these changes incorporated, to all involved agencies requesting their comments to be returned by March 29. The next ZBA meeting is scheduled for Thursday, April 5, at 7 pm.[/private]